FIDEICOMMISSUM
FIDEICOMMISSUM was a bequest which a person made by begging
his heir or legatee to transfer something to a third person. Such a bequest
was one of a fiduciary kind, its execution being entrusted to the goode
faith of the party to whom the request was made. Fideicommissa were used for
some time before they were made legally enforceable, devisees charged with
them being at first only under a moral obligation to carry out the wishes of
the deceased. This was the position of fideicommissa in the time of Cicero,
who distinctly notices the practice of leaving fideicommissa (Cic.
de Fin. 2.17, 18): the
commendationes morientium mentioned by him (
de Fin. 3.20, 65) appear to have been fideicommissa.
It was not till the time of Augustus that fideicommissa were legally
binding. Augustus was induced to enforce them partly by the desire of
favouring particular individuals and partly on account of the scandal which
some gross breaches of trust had caused. He himself, as heir of Lucius
Lentulus, executed a fideicommissum with which he was charged by codicil
(Inst. 2.25, pr.). Jurisdiction over fideicommissa was assigned by Augustus
to the consuls. In the time of
[p. 1.856]Claudius permanent
praetores fideicommissarii were appointed, and the power of enforcing
fideicommissa was given to the praesides of the provinces. (
Suet. Cl. 22;
Dig. 1,
2,
2.32.) Under Titus
and subsequent emperors only one praetor fideicommissarius was appointed.
The consuls still retained their jurisdiction over fideicommissa, but only
exercised it in important cases (Quintil.
Inst. 3.6).
Proceedings in respect to fideicommissa always belonged to
extraordinaria, not to
ordinaria
jurisdictio, i.e. they were not transmitted by a magistratus
to a judex, but were entirely under magisterial cognisance. The practice of
creating fideicommissa arose from the desire of obtaining greater freedom in
respect to the disposition of property after death than the civil law rules
of inheritance admitted. The advantages of leaving property by way of
fideicommissum rather than by the civil law institution of legatum were
numerous (Gaius, 2.289). A fideicommissum could be more easily created than
a legatum. Thus a legatum was not valid unless made by will or by codicil
confirmed by will; it was necessary for a testator to use particular forms
of words in order to bequeath a legatum and to express his intention in
Latin. A fideicommissum, on the other hand, might be left without a will by
simple words of request, such as
fideicommitto, peto,
volo dari, and the like. It might either be contained in written
documents called
codicilli, or expressed orally
or even intimated simply by a nod ( “etiam nutu relinquere
fideicommissum in usu receptum est,” Ulp. 25.3). It required no
particular form of words, and might be expressed in Greek. The informal
character of fideicommissa made them specially convenient when a man was
called on suddenly to make a disposition of his property. Another advantage
of fideicommissa was that they could be imposed on persons who could not be
made subject to legata, for only a heres could be charged with a legatum;
but a fideicommissum, if it consisted of a particular bequest, might be made
binding not only on a heres, but also upon a legatarius. A person to whom a
fideicommissum was left might himself be subject to a fideicommissum. A
fideicommissum which bound a person to transfer an inheritance could only be
charged on a heres, but a heres ab intestato as well as a heres ex
testamento might be requested to make such a transfer, whereas the latter
kind of heres only could be made subject to a legatum. In order to secure
the carrying out of his intentions, a testator might request that, if his
will failed from some cause to take effect as a will, his heres ab intestato
should carry out its provisions as fideicommissa.
Fideicommissa were much used for the purpose of leaving property to persons
who were either altogether incapable of taking directly under a will, or who
could not take so much as ordinary persons. This was effected by leaving
property to some one who was capable of taking according to civil law, or by
allowing property to devolve under the rules of intestacy, and adding a
fideicommissum for the benefit of some one who was under a total or partial
disability. Fideicommissa were used in order to leave property to peregrini,
who could not otherwise take. Gaius, when noticing this use of
fideicommissa, remarks that the object of leaving property to persons of
this class was a principal cause of the establishment of fideicommissa.
(Gaius, 2.285; cf. Theoph.
Paraphr. 2.23.1.) Fideicommissa
were employed as early as the time of Cicero for making bequests to women in
order to evade the Lex Voconia [VOCONIA] (Cic.
de Fin. 2.17, 18). Similarly fideicommissa
were created for the benefit of caelibes and orbi in order to evade the Lex
Papia Poppaea [LEX PAPIA POPPAEA]; also for the
purpose of bequeathing property to Latini Juniani, incertae personae,
postumi alieni, and corporate bodies. In course of time, however,
fideicommissa were put on much the same footing as legata in respect to the
persons who could take them. Thus, by a senatusconsultum passed in the time
of Hadrian, fideicommissa left to peregrini were made forfeitable to the
treasury (Gaius, 2.285). The senatusconsultum Pegasianum prevented
fideicommissa being made a means of evading the Lex Papia Poppaea, by giving
fideicommissa left with this object to those persons in the will who had
children, and in default of such to the treasury, as in the case of
hereditates and legata [
BONA
CADUCA]. (Gaius, 2.286 a.) By a senatusconsultum of Hadrian it was
declared that incertae personae and postumi alieni should be incapable of
taking fideicommissa. In consequence of these changes in the law, Ulpian was
able to state it as a rule that only those persons are capable of taking
fideicommissa who can take legata (Ulp. 25.6). But the distinction that
Latini Juniani were capable of taking fideicommissa but not legata, remained
till this class of freedmen was abolished by Justinian. It was not possible
to institute after the death of a person who became heres another heres to
take his place, but a request might be made that the whole or part of an
inheritance should, on or after the death of the heres, be transferred to
another, in which case the heres of the heres would be bound by a
fideicommissum to make the required transfer. By requesting each successive
transferee of an inheritance to make it over on his death to some other
member of a family, a kind of family settlement might be created. Justinian
in his 115th Novell placed restrictions on the power of leaving such family
fideicommissa. There was a difference between the effect of manumitting a
slave by direct bequest and by fideicommissum; if manumitted in the latter
way, the slave became the freedman of the person who had been requested to
manumit him, whereas a freedman manumitted directly by will was looked on as
the freedman of his deceased master (
libertus
orcinus). A person might be bound by fideicommissum to transfer his own
property or that of a third party as well as the property of the deceased.
If a person failed to execute a fideicommissum at the proper time, he was
liable on account of mesne profits and interest, but interest could not be
claimed, as a rule, against a heres who had failed to satisfy a legatum.
The differences between fideicommissa of single things and legata, which
existed when Gaius wrote, disappeared in later law. The simplification of
the law relating to the mode of creating legata and the requirement of
formalities for the creation of fideicommissa was a
[p. 1.857]considerable step in this direction (Cod. Theod. 4.4, 1; Cod.
Just. 6.37,
21). The
difference in the forms of action for these two kinds of bequest ceased when
the libellary procedure was substituted for the formulary. Justinian
entirely assimilated legata and fideicommissa (
Dig.
1,
30,
1). A
fideicommissum of a specific thing did not pass the property in the thing to
the fideicommissarius, but only gave him a personal action against the
person who was requested to transfer the thing. ( “Jus omne
fideicommissi non in vindicatione sed in petitione consistit,”
Paul.
Sent. 4.1, 16.) Justinian changed the law on this
subject, giving to a fideicommissarius of a specific thing which had
belonged to the deceased, as well as to a legatarius, both a personal action
and an
actio in rem for the recovery of the
thing (Cod. 6.43, 1). The object of a fideicommissum might either be the
inheritance, whether the whole or a part (
fideicommissaria hereditas), or it might be a particular
bequest (
fideicommissum rei singulae).
It is necessary to give some account of the history of the law relating to
the universal fideicommissum or fideicommissaria hereditas. A heres
requested to transfer the whole or part of an inheritance to some one else
is called
fiduciarius, the person to whom the
transfer is to be made being termed
fideicommissarius. The heres fiduciarius by accepting the
inheritance became personally bound to transfer it to the fideicommissarius.
Originally the fideicommissarius was considered, when the transfer was made
to him, to be in the position of a purchaser (
emptoris
loco), it being usual as a mere formality for the inheritance
to be sold to him for a single coin (
nummo
uno). The effect of the transaction was to make the
fideicommissarius a particular, not a universal successor; for the
fiduciarius having once become heres necessarily continued to be heres, and
consequently could not get rid of his liability to the creditors of the
deceased. Hence the fiduciarius, in order to secure himself against the
liability which he incurred if he accepted the inheritance, required before
his acceptance that the fideicommissarius should enter into the same
stipulations as were usually entered into between the vendor and purchaser
of an inheritance, by which it was covenanted that the fiduciarius should be
indemnified on account of all liability in respect to the inheritance. On
the other hand, it was agreed that the fideicommissarius (
qui recipiebat hereditatem) should have whatever part of the
inheritance might still come into the hands of the heres, and should be
allowed to maintain all actions concerning the inheritance in the name of
the heres. (Gaius, 1.248-252.)
A great change was made in the relations of the heres fiduciarius and
fideicommissarius by the senatusconsultum Trebellianum, which was passed
under Nero A.D. 62. This law provided that on the transfer of an inheritance
by a heres fiduciarius all rights of action maintainable by or against him
should be transferred to and against the fideicommissarius. The praetor
allowed the latter to sue and to be sued by means of
actiones utiles. A heres who made a transfer under this
statute practically ceased to be heres, the fideicommissarius being
substituted in his place. The fideicommissarius to whom such a transfer was
made, became fully liable for the debts of the deceased, and occupied the
position of a universal successor. As this statute relieved the fiduciarius
from all liability, the covenants which he had previously insisted on were
no longer required. Fideicommissa were, however, sometimes lost, because the
heres would not accept the inheritance if he got little or no advantage in
so doing; the principle of the Quarta Falcidia, which had not previously
applied to fideicommissa, but only to legata, was therefore extended to
fideicommissa by the senatusconsultum Pegasianum, passed in the time of
Vespasian: by this law a heres had the right of deducting one-fourth of the
inheritance before transferring a universal or particular fideicommissum. If
several co-heredes were charged with fideicommissa, each was entitled to a
fourth of his share of the inheritance. If a fiduciarius took advantage of
the senatusconsultum Pegasianum by deducting a fourth under it, he was not
relieved by the senatusconsultum Trebellianum from all debts and charges
(
onera hereditaria) ; in this case the
fideicommissarius continued to be a singular successor, like a legatarius
partiarius or legatee of a part of an inheritance, and so he was required by
the fiduciarius to enter into covenants by which he undertook to be
answerable for liabilities in proportion to the share of the inheritance
which he received (
pro rata parte). The effect
of these two enactments was this: if the heres was required to restore not
more than three-fourths of the inheritance, the senatusconsultum
Trebellianum took effect, and the heres was relieved from all liability
beyond the proportion of the inheritance which was intended for him. If the
heres was required to restore more than three-fourths or the whole, the
heres took advantage of the senatusconsultum Pegasianum, but then he was not
relieved from liability and could only protect himself by covenants with the
fideicommissarius. The senatusconsultum Pegasianum gave the
fideicommissarius the right to compel the heres to accept the inheritance
(
adire), but in this case all the benefits
of the inheritance as well as its burdens attached to the fideicommissarius
(Gaius, 2.258). By the legislation of Justinian the senatusconsultum
Pegasianum was merged in the senatusconsultum Trebellianum, and the
following rules were established. The heres who was charged with a universal
fideicommissum might always retain one-fourth of the inheritance, if so much
had not been left to him by the deceased ; if the fiduciarius retained
one-fourth, all claims on behalf of or against the inheritance were shared
between the fiduciarius and fideicommissarius, according to their respective
shares. If the fiduciarius refused to accept the inheritance, the
fideicommissarius could oblige him by action to do so; if after having been
ordered by a court to enter, the fiduciarius continued to abstain, his
acceptance was assumed to have been given. A fiduciarius who was compelled
to take the inheritance, lost his quarta and any other advantage he might
have derived from the inheritance. The express or implied assent of the
fiduciarius was sufficient to transfer the inheritance to the
fideicommissarius. The fiduciarius was bound to restore the inheritance at
the time named by the deceased, or, if no time was named, immediately after
[p. 1.858]accepting it. He was required to account for
all property which had come into his hands, and was entitled to be
indemnified for all proper costs and charges which he had sustained with
respect to the inheritance; he was answerable for any damage or loss which
it had suffered through his
dolus or
culpa. Conveyances which the fiduciarius had made of
the property of the inheritance were void as against the fideicommissarius.
After the transfer had been made to him, the fideicommissarius could
maintain the
hereditatis petitio
fideicommissaria against anyone who had possession of the property
of the inheritance. (Gaius, 2.246-289; Ulp.
Fragm. tit. xxv.;
Inst. 2.23, 24;
Dig. 30-
33,
36; Cod. 6.37-54;
Arndts,
Fortsetzung von Glück, 46.6-80; Mayer,
Die Lehre von den Legaten Fideicommissen; Lassalle,
Röm. Erbr. p. 120, &c.; Rosshirt,
Verm. 1.120; Heimbach,
Rechtslex. 4.286,
s.v. Vangerow,
Pandekten, 2. § § 528, 556.)
[
E.A.W]
